"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, Music, Politics, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt and Dr. Alicia Triche, expert brief writer, practical scholar, emeritus Editor-in-Chief of The Green Card (FBA), and 2022 Federal Bar Association Immigration Section Lawyer of the Year. She is a/k/a “Delta Ondine,” a blues-based alt-rock singer-songwriter, who performs regularly in Memphis, where she hosts her own Blues Brunch series, and will soon be recording her first full, professional album. Stay tuned! 🎶 To see our complete professional bios, just click on the link below.
President-elect Joe Biden is reportedly set to name Merrick Garland as his nominee for attorney general. If confirmed, Garland will take over a demoralized Justice Department that has abandoned bedrock principles and priorities, and come under withering attack from President Donald Trump’s administration.
Garland, a former federal prosector who lead the investigation into the Oklahoma City bomber, was nominated to the Supreme Court by former President Barack Obama following Antonin Scalia’s 2016 death. The Republican-controlled Senate refused to hold a hearing on his nomination for months, citing the presidential election. His pending nomination died in early 2017, after 293 days.
Garland will take over a Justice Department that Trump sought to weaponize against his political opponents and use as his personal law firm. Trump has fired or pushed out a number of key department officials, most famously former FBI Director James Comey. Trump appointees have used the Justice Department’s power in an overtly political fashion, even if they’ve resisted Trump’s desire to wield the department’s prosecutorial power as a blunt political weapon.
The nominee will face the challenge of determining how the Justice Department will approach potential criminal investigations into Trump and members of his administration. They will also face the prospect of rebuilding components like the Civil Rights Division, which abandoned key issues like police reform and focused on controversial religious liberty cases and attacks on college affirmative action programs. They’ll also have to deal with the long-term consequences of Trump’s attacks on the FBI, which has gutted Republicans’ confidence in the nation’s premier law enforcement organization. Biden’s nominee may also have to figure out how to combat a rise in right-wing domestic terrorism cases, some of which have been directly inspired by the outgoing president’s rhetoric against his political enemies and Muslims.
In addition, Biden’s nominee will have to deal with the delicate question of how to handle the ongoing tax investigation into the new president’s son, Hunter Biden, which is being led by the U.S. Attorney’s Office in Delaware. The nominee will have to reassure the American public that there won’t be political interference in the probe, perhaps by walling off the investigation. Republicans, the vast majority of whom were unconcerned with Trump’s repeated attempts to improperly interfere in Justice Department matters, might even call for a special counsel to assure the probe’s independence.
Former Attorney General Eric Holder, who had to rebuild the Justice Department after controversies during the George W. Bush administration, told HuffPost that Biden understands that he needs to give the attorney general “the space that he or she needs to restore integrity and the independence” of the Justice Department.
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Reread the rest of the article at the link.
I knew Judge Garland a little bit from the DOJ in the Carter Administration, eons ago.He’s obviously in a totally different class than his sleazy, White Nationalist enabling predecessors in the defeated regime. It should be a welcome breath of professionalism, re-infusion of ethics, and re-establishment of due process, the rule of law, and simple common sense and human decency at the “disaster zone” DOJ.
I just hope that fixing the totally broken and dysfunctional Immigration Courts and restoring fairness, due process, and independence by bringing in immigration and human rights experts from the NDPA is high on his “to do” list! Only time will tell. But, potentially, he appears to be the right person to rebuild and transition the existing EOIR mess into an independent Article I Immigration Court.
Obviously, unlike most of his predecessors, he understands what a “real court” should look like and how it should operate.
With the results from Georgia coming in, today the long-sought objective of Article I seems closer than it has ever been.
⚖️🗽🇺🇸Due Process Forever! Time for Judge Garland 👨🏻⚖️ to end the “EOIR Clown Show”🤡!
BILL BARR – Unqualified For Office – Unfit To Act In A Quasi-Judicial Capacity
There have been many articles pointing out that Bill Barr unethically has acted as Trump’s defense counsel rather than fulfilled his oath to uphold the Constitution and be the Attorney General of all of the American people. There have also been some absurdist “apologias” for Barr some written by once-respected lawyers who should know better, and others written by the normal Trump hacks.
Here are my choices for four of the best articles explaining why Barr should not be the Attorney General. It goes without saying that he shouldn’t by any stretch of the imagination be running the Immigration Court system. His intervention into individual cases in a quasi-judicial capacity is a clear violation of judicial ethics requiring avoidance of even the “appearance” of a conflict of interest. There is no “appearance” here. Barr has a clear conflict in any matter dealing with immigration.
Attorney General William Barr. Photo: Brendan Smialowski/AFP/Getty Images
House Democrats are going to face a difficult decision about launching an impeachment inquiry into President Trump. Balanced against the president’s impressive array of misconduct is the fact that several more criminal investigations that may add to the indictment are already underway, and that impeaching the president might jeopardize the reelection of red-state Democratic members. But in the meantime, Attorney General William Barr presents them with a much easier decision. Barr has so thoroughly betrayed the values of his office that voting to impeach and remove him is almost obvious.
On March 24, Barr released a short letter summarizing the main findings of the Mueller investigation, as he saw them. News accounts treated Barr’s interpretation as definitive, and the media — even outlets that had spent two years uncovering a wide swath of suspicious and compromising links between the Trump campaign and Russia — dutifully engaged in self-flagellation for having had the temerity to raise questions about the whole affair.
Barr had done very little to that point to earn such a broad benefit of the doubt. In the same role in 1992, he had supported mass pardons of senior officials that enabled a cover-up of the Iran–Contra scandal. Less famously, in 1989 he issued a redacted version of a highly controversial administration legal opinion that, as Ryan Goodman explained, “omitted some of the most consequential and incendiary conclusions from the actual opinion” for “no justifiable reason.”
And while many members of the old Republican political Establishment had recoiled against Trump’s contempt for the rule of law, Barr has shown no signs of having joined them. He met with Trump to discuss serving as his defense lawyer, publicly attacked the Mueller investigation (which risked “taking on the look of an entirely political operation to overthrow the president”), called for more investigations of Hillary Clinton, and circulated a lengthy memo strongly defending Trump against obstruction charges.
The events since Barr’s letter have incinerated whatever remains of his credibility. The famously tight-lipped Mueller team told several news outlets the letter had minimized Trump’s culpability; Barr gave congressional testimony hyping up Trump’s charges of “spying,” even prejudging the outcome of an investigation (“I think there was a failure among a group of leaders [at the FBI] at the upper echelon”); evaded questions as to whether he had shared the Mueller report with the White House; and, it turns out, he’s “had numerous conversations with White House lawyers which aided the president’s legal team,” the New York Times reports. Then he broke precedent by scheduling a press conference to spin the report in advance of its redacted publication.
It is not much of a mystery to determine which officials have offered their full loyalty to the president. Trump has reportedly “praised Barr privately for his handling of the report and compared him favorably to former Attorney General Jeff Sessions” —whose sole offense in Trump’s eyes was following Department of Justice ethical protocol. Trump urged his Twitter followers to tune in to Barr’s conference, promotional treatment he normally reserves for his Fox News sycophants.
The press conference was the final disqualifying performance. Barr acted like Trump’s defense lawyer, the job he had initially sought, rather than as an attorney general. His aggressive spin seemed designed to work in the maximal number of repetitions of the “no collusion” mantra, in accordance with his boss’s talking points, at the expense of any faithful transmission of the special counsel’s report.
Barr’s letter had made it sound as though Trump’s campaign spurned Russia’s offers of help: “The Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign,” he wrote. In fact, Mueller’s report concluded, “In some instances, the Campaign was receptive to the offer,” but that the cooperation fell short of criminal conduct.
Where Mueller intended to leave the job of judging Trump’s obstructive conduct to Congress, Barr interposed his own judgment. Barr offered this incredible statement for why Trump’s behavior was excusable: “[T]here is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said. “Nonetheless, the White House fully cooperated with the Special Counsel’s investigation,” and credited him further with taking “no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.”
Sincere? How can Barr use that word to describe the mentality of a man whose own staffers routinely describe him in the media as a pathological liar? Trump repeatedly lied about Russia’s involvement in the campaign, and his own dealings with Russia. And he also, contra Barr, repeatedly denied the special counsel access to witnesses by dangling pardons to persuade them to withhold cooperation.
It is true that many of Trump’s attempts to obstruct justice failed. As Mueller wrote, the president’s “efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
This is a rather different gloss on the facts than the happy story Barr offered the press. What’s more, it is a pressing argument for Barr’s own removal. Next to the president himself, the attorney general is the most crucial actor in the safeguarding of the rule of law. The Justice Department is an awesome force that holds the power to enable the ruling party to commit crimes with impunity, or to intimidate and smear the opposing party with the taint of criminality.
There is no other department in government in which mere norms, not laws, are all that stand between democracy as we know it and a banana republic. Barr has revealed his complete unfitness for this awesome task. Nearly two more years of this Trumpian henchman wielding power over federal law enforcement is more weight than the rickety Constitution can bear.
In the years after Watergate, Justice Department officials — from both parties — worked hard to banish partisan cronyism from the department. Their goal was to make it the least political, most independent part of the executive branch.
“Our law is not an instrument of partisan purpose,” Edward Levi, Gerald Ford’s attorney general, said at the time. Griffin Bell, later appointed to the same job by Jimmy Carter, described the department as “a neutral zone in the government, because the law has to be neutral.”
Attorney General William Barr clearly rejects this principle. He’s repeatedly put a higher priority on protecting his boss, President Trump, than on upholding the law in a neutral way. He did so in his letter last month summarizing Robert Mueller’s investigation and then again in a bizarre prebuttal news conference yesterday. As The Times editorial board wrote, Barr yesterday “behaved more like the president’s defense attorney than the nation’s top law-enforcement officer.”
Throughout his tenure, Barr has downplayed or ignored the voluminous evidence of Trump’s wrongdoing — his lies to the American people, his willingness to work with a hostile foreign country during a presidenial campaign, his tolerance of extensive criminal behavior among his staff and his repeated efforts to obstruct an investigation. Barr even claimed that Trump “fully cooperated” with that investigation, which Vox’s Ezra Klein notes is “an outright lie.”
Since he took office, Trump has made clear that he wants an attorney general who acts as first an enforcer of raw power and only second as an enforcer of federal law. In Barr, Trump has found his man. Together, they have cast aside more than four decades worth of Justice Department ideals and instead adopted the approach of Richard Nixon.
President Donald Trump has long wished for an attorney general who would act as his own private lawyer, protecting him from any potential legal damage. He finally found his man in William Barr.
Barr could have released special counsel Robert Mueller’s report from the beginning. Instead, the attorney general chose to twice present his own interpretation of the special counsel’s findings on foreign interference in the 2016 U.S. election ― before allowing members of the public to see the report and decide for themselves whether Trump and his associates did anything improper.
The first time the public received a glimpse of what was in the Mueller report was on March 24, when Barr sent a four-page letter to congressional leaders summarizing his conclusions from the report the special counsel team had submitted to Barr two days earlier.
The second time the public heard about the report’s content was in a Thursday morning press conference when Barr went out of his way to echo Trump talking points, attacking the media and the president’s “political opponents.”
To the Justice Department’s credit, the redactions in the Mueller report were relatively light ― allowing the public to see a substantial amount of the content.
But still, in his public comments, Barr made sure to paint as positive a picture of Trump before the report became widely available.
Here’s how the attorney general misled the public:
He left out the Trump campaign’s expectation of benefiting from hacked material.
In his letter to Congress on March 24, Barr wrote:
The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: ”[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election inference activities.”
While it’s true that the Mueller report did reach that conclusion, that quote is incomplete. Barr left out the first part, which was less complimentary to the Trump campaign.
Below is the full quote from the Mueller report, with the part Barr omitted in bold:
Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
He said it was up to him to make a decision on obstruction of justice.
ASSOCIATED PRESS
Attorney General William Barr went to bat for Trump in a Thursday morning press conference.
In his March 24 letter, Barr said Mueller’s team did not come to a conclusion on whether Trump had obstructed justice in the course of the investigation. Therefore, Barr claimed, it was now up to him to make that determination.
“The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime,” he wrote.
Barr said he concluded that the evidence “is not sufficient to establish that the President committed an obstruction-of-justice offense.”
But Barr never had to make that legal conclusion, as Matt Miller, a spokesman for the Justice Department under President Barack Obama, pointed out. And Mueller never asked Barr to so.
Indeed, the report said the special counsel’s team couldn’t come to such a conclusion:
[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.
The report also said that ultimately, the obstruction call wasn’t for Mueller to make. The special counsel decided not to make a decision on whether to prosecute Trump because the Justice Department’s position, according to an Office of Legal Counsel memo, is that a sitting president cannot be indicted.
“Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations … this Office accepted OLC’s legal conclusion for the purpose of exercising prosecutorial jurisdiction,” the report states.
Furthermore, it seems clear that Mueller and his team expected that ultimately, Congress would make the decision on obstruction of justice.
NBC News reported earlier that some in Mueller’s office had said “their intent was to leave the legal question open for Congress and the public to examine the evidence.”
“[W]e concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice,” the report says.
In other words, Congress can impeach the president if it wants to do so.
He gave an incomplete picture of Trump’s actions that could be construed as obstruction of justice.
“In cataloguing the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct,” Barr wrote in his March 24 letter.
The report doesn’t let Trump off the hook quite so easily. It says Trump tried to obstruct justice ― but he didn’t succeed because his staff refused to follow his orders.
“The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the report reads.
The report detailed 10 acts by Trump that could amount to obstruction of justice.
He said Mueller found “no collusion.”
ASSOCIATED PRESS
Special Counsel Robert Mueller has been called to testify before Congress about his report.
One of Trump’s favorite phrases is that there was “no collusion” between his campaign and the Russian government in the 2016 elections. He has tweeted it 84 times.
Barr used the phrase four times in his 18-minute remarks in Thursday’s press conference:
“Put another way, the special counsel found no ‘collusion’ by any Americans in the IRA’s illegal activity.”
“But again, the special counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations. In other words, there was no evidence of Trump campaign ‘collusion’ with the Russian government’s hacking.”
“After finding no underlying collusion with Russia, the special counsel’s report goes on to consider whether certain actions of the president could amount to obstruction of the special counsel’s investigation.”
“At the same time, there was relentless speculation in the news media about the president’s personal culpability. Yet, as he said from the beginning, there was, in fact, no collusion.”
But the Mueller report never actually said the investigation found no collusion. In fact, the report explains specifically why it doesn’t use the term “collusion.” The word only appears in the report as part of this explanation or in quoting someone else.
MUELLER REPORT
The Mueller report avoided using the term “collusion,” and explains why here.
Therefore, Barr repeatedly saying Mueller found “no collusion” was simply the attorney general adopting a Trump talking point.
He said Trump fully cooperated with the investigation.
Barr was extremely sympathetic to Trump in Thursday’s press conference. He tried to paint a picture of a president under extreme ― and unfair ― pressure, telling reporters, “As he entered into office, and sought to perform his responsibilities as president, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.”
He said Trump was “frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” so it’s not surprising if he may have lashed out a bit. And, he added, Trump deserved credit for “fully cooperat[ing]” with the special counsel at all:
Nonetheless, the White House fully cooperated with the special counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims.
Trump, however, didn’t fully cooperate. He refused repeated requests to give an interview to Mueller and his team. The report said the special counsel’s team considered issuing a subpoena for Trump to testify but ultimately decided it wasn’t worth it:
MUELLER REPORT
The Mueller report says Trump refused to be interviewed by the special counsel and his team.
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Finally, this editorial form the SF Chronicle really “hammers home” Barr’s patent unfitness to continue serving.
Editorial: Attorney General Barr’s misplaced loyalties
Chronicle Editorial Board
Updated
Photo: Tom Brenner / New York Times
Attorney General William Barr has been acting as if he is Presisdent Trump’s personal attorney.
President Trump has never made any secret of his desire to have an attorney general whose first loyalty was to him. Regrettably for the nation and the honest administration of justice, Trump unquestionably now has one in William Barr.
The attorney general has lost all credibility with his disgraceful handling of the rollout of the Mueller report into Russian interference into the 2016 election. Barr left the American people for more than a month with a seriously skewed characterization of the “principal conclusions” from Special Counsel Robert Mueller’s findings from the two-year investigation.
His four-page summary of those conclusions amounted to “nothing much to see here, folks.” While he was correct that the Mueller team could not make a case that anyone in Trump’s campaign broke the law by conspiring with Russians, the Barr summary was downright deceptive in its portrayal of the special counsel’s findings on possible obstruction of justice by the president.
Barr’s summary suggested that “difficult questions of law and fact” left it difficult for Mueller to determine whether Trump had obstructed the probe. Barr and his deputy took it upon themselves to conclude that “the evidence developed by the special counsel is not sufficient” to establish obstruction.
Americans who have now read the Mueller’s team’s own words in the 448-page report discovered that Barr’s account was highly misleading. In fact, Mueller’s hesitation was not based on an inability to decide; it was guided in part by a Department of Justice policy that a sitting president could not be indicted. Given that, Mueller suggested it would be unfair to accuse Trump of a crime when the president could not have a chance to defend himself in a “speedy and public trial” with the constitutional protections.
Barr also suggested that Trump could not have obstructed justice into an investigation of a crime he did not commit.
Mueller’s report clearly stated otherwise.
“The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong,” it stated. Mueller’s investigation detailed “multiple acts by the president that were capable of exerting undue influence over law enforcement investigations.”
Rather than punting the obstruction decision to Barr, Mueller very clearly noted that a decision on what to do with the substantial evidence of wrongdoing he collected should be made by Congress, which has the power of impeachment.
Barr never bothered to correct Trump’s exhortation of “complete and total exoneration.” Barr might as well have been on a Trump spokesman, rather than the nation’s chief law enforcement officer, at a bizarre Thursday news conference (before the report’s release) in which he offered a sympathetic explanation for Trump’s repeated efforts to stymie the investigation. Barr chalked it up to Trump’s anger and frustration.
Justice has been frustrated. Americans are justifiably angry. Barr has proved himself unfit for the high office he holds.
This commentary is from The Chronicle’s editorial board. We invite you to express your views in a letter to the editor. Please submit your letter via our online form: SFChronicle.com/letters.
Undoubtedly, Trump is unfit for office as many of us have been saying for some time now. The Mueller report confirmed what most thinking people already knew: the guy is dishonest, immoral, pathological, and a not very bright “con man.” (He’s also a racist and a White Nationalist would be authoritarian, although those admittedly were not points of emphasis in the Mueller report which focused on other aspects of his totally disgraceful conduct.)
But, I’ll concede that Trump’s removal is unlikely to happen except at the ballot box. Even that is uncertain with about 40% of American voters apparently wedded to a “beggar thy neighbor, who cares about the majority, country be damned” worldview. Trump is already focused on a “race-baiting” strategy of leveraging the most problematic aspects of our electoral college system while treating the interests of majority of Americans with mockery and disdain.
It remains to be seen whether any Democratic candidate can unite the diverse majority of Americans for at least long enough to save our country by removing Trump and, hopefully, his GOP enablers along with him. It also remains to be seen whether any country where 40% of the voters are so out of touch with reality and the common interests of the rest of us can actually be governed, once majority rule is restored.
But, Barr is a different matter. He’s not elected, he’s not President, and we don’t have to enable his continued unethical misuse of authority at the DOJ, at least not in the the all important area of the U.S. Immigraton Court.
If Congress won’t do the job by creating an independent Article I U.S. Immigration Court, it’s time for the Article III courts to invalidate precedents produced by Barr’s and Sessions’s unethical participation in individual quasi-judicial decision-making and to start invalidating removal orders entered by “courts” controlled by political enforcement officials, in clear contradiction to the Due Process requirement that individuals facing the life or death authority of the Federal Government are entitled to have fair and impartial decision makers and reasoned decisions. That can’t happen in a system controlled and directed by biased political “enforcement only” officials like Barr (and Sessions before him). Barr has made it crystal clear that he always will put the selfish interests of Trump above truthfulness, the law, due process, fundamental fairness, and the common good.
Letting this farce of a “judicial system” continue unfairly endangering individual lives and deferring to officials who are neither subject matter experts nor fair and impartial quasi-judicial decision makers is unconstitutional. By letting it continue, life-tenured Federal Judges both tarnish their reputations and fail to fulfill their oaths of office.
As a young attorney in the Department of Justice during the Watergate Era, I, along with many others, were indelibly impressed and inspired when then Attorney General Elliot Richardson and his Deputy William Ruckelshaus resigned rather than carry out Nixon’s illegal order to fire the Watergate Special Prosecutor (a/k/a/ “The Saturday Night Massacre”). Obviously, Barr has dragged the Department and its reputation down to new depths — back to the days of Nixon and disgraced (and convicted) Attorney General “John the Con” Mitchell, who actually planned criminal conspiracies in his fifth floor office at the DOJ.
Obviously, there are systemic problems that have allowed unqualified individuals like Barr and Sessions to serve in and co-opt the system of justice, and denigrate the Department of Justice. (I spoke to some recently retired DOJ officials who characterized the morale among career professionals at the DOJ as “below the floor”). Some of those can be traced to the lack of backbone and integrity in the “Trump GOP” which controls the Senate and refuses to enforce even minimal standards of professionalism, meaningful oversight, and independent decision making in Trump appointees. That’s what a “kakistocracy” is. It’s up to the rest of us to do what is necessary under the law to replace the kakistocracy with a functioning democracy.
“A sharply divided Senate confirmed President Trump’s nominee for attorney general Wednesday, capping an ugly partisan fight and revealing how deep the discord has grown between Republicans and Democrats at the dawn of Trump’s presidency.
The day after an unusually tense conflict on the Senate floor, the chamber voted 52 to 47 on Wednesday evening to clear Sen. Jeff Sessions (R-Ala.), whose record on civil and voting rights as a federal prosecutor and state attorney general has long been criticized. Sessions won confirmation almost exclusively along party lines. Sen. Joe Manchin III (W.Va.) was the only Democrat who supported him, and no Republican voted against him. Sessions voted present.
In remarks after his confirmation, Sessions mentioned the “heated debate” surrounding him and said he hoped “the intensity of the last few weeks” would give way to better relations in the Senate.”
